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When does service provision change amount to transfer of an economic entity?
31 January 2018The European Court of Justice (“ECJ”) was recently required to consider whether the award of a service contract to a replacement contractor in Portugal amounted to the transfer of an economic entity under the EU Acquired Rights Directive (“ARD”). Portugal has no equivalent legislation to the UK’s service provision change (“SPC”) rules
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TUPE and offshoring
30 January 2018In a recent case, the Employment Appeal Tribunal (“EAT”) was asked to consider the application of TUPE in the context of an offshoring of services and whether a transferring employee was entitled to protection of his salary terms if he relocated to the new place of operations in the transferee’s home jurisdiction.
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Advocate General suggests no transfer on change of music school contractor
26 January 2018An Advocate General (“AG”) of the European Court of Justice (“ECJ”) has considered whether a transfer of an undertaking occurred where a contract to operate a Spanish music school was terminated and another contractor resumed the service five months later. Under the EU Acquired Rights Directive (“ARD”), a transfer of an undertaking occurs where there is a transfer of an economic entity which retains its identity. An economic entity consists of an organised grouping of resources (i.e. persons and assets), organised with a view to carrying on economic activity.
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Equal pay, TUPE and insolvency
24 January 2018The issue for the Employment Appeal Tribunal (“EAT”) in a recent case was what happens to historic equal pay liabilities when claimant employees transfer under TUPE on to a new employer in the context of the transferor employer’s insolvency.
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Employee liability information is not limited to contractual matters
25 September 2017The Employment Appeal Tribunal (“EAT”) has ruled that the employee liability information (“ELI”) that a transferor is required to provide under regulation 11 of TUPE is not limited to contractual entitlements. In addition, the EAT decided that there is no obligation on the transferor to set out whether any entitlement is contractual or not.
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Service provision changes – determining principal purpose of organised grouping
25 September 2017The EAT has given guidance on the correct approach to determining the “principal purpose” of an organised grouping of employees within the meaning of the service provision change (“SPC”) rules under TUPE.
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Automatic transfer of employees applies on ‘pre-pack’ sale
25 September 2017The European Court of Justice (“ECJ”) has confirmed that, in the event of a “pre-pack” sale aimed at rescuing all or part of an insolvent undertaking as a going concern, EU transfer of undertakings law requires that the employees automatically transfer. This is consistent with the position in the UK under TUPE.
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Bid to object to transfer fails because TUPE did not apply
22 September 2017The High Court has considered an employee’s attempt to escape a lengthy period of garden leave by objecting to a TUPE transfer when his employer was going through a change in ownership. This was a creative attempt by the employee to avoid his contractual notice obligations, but he ultimately failed due to the lack of one key ingredient - a TUPE transfer.
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Continuous service for notice pay preserved on transfer
22 September 2017The European Court of Justice (“ECJ”) has considered an interesting TUPE issue concerning continuous service, arising in a case referred by the Swedish Labour Court.
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Test for ‘old-style’ transfer of economic entity requires multifactorial approach
08 March 2017The Employment Appeal Tribunal (“EAT”) has ruled that an employment tribunal, in finding that the termination of a franchise agreement gave rise to a relevant transfer under TUPE, made the mistake of focusing on one particular factor and failing to adopt a multifactorial approach assessing all the relevant circumstances.
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Confirmation that collectively agreed terms are ‘static’ for transferring employees
08 March 2017In two joined cases referred to the European Court of Justice (“ECJ”) by the German Federal Labour Court, an Advocate General (“AG”) has handed down an advisory opinion on the effect of a TUPE transfer on employment terms governed by a collective agreement.
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Activities fundamentally the same despite alterations to location and scope of service
01 March 2017The Employment Appeal Tribunal (“EAT”) has upheld an employment judge’s decision that a service to provide accommodation-based support services for homeless people had remained fundamentally the same before and after a TUPE service provision change (“SPC”), despite alterations to the location and scope of the service.
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Continuous service for notice pay preserved on transfer
28 February 2017An Advocate General (“AG”) of the European Court of Justice has handed down an advisory opinion on an interesting TUPE issue concerning continuous service, arising in a case referred by the Swedish Labour Court
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‘ETO’ reasons must entail changes in workforce
06 February 2017A recent decision of the Employment Appeal Tribunal (“EAT”) serves as a useful reminder of how employers can fairly dismiss employees for an economic, technical or organisational (“ETO”) reason following a TUPE transfer.